For those of you who followed this blog's posts entitled Samuarai Lawyers (Part 1, Part 2, and Part 3) you know that Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada, commented on the Book of Water post. Wagner spent a number of years living in Japan and practicing Aikido.

I asked him for his thoughts on the Book of Wind post. Why? Because I am fascinated by the practice of law as between these two lawyers living in adjacent countries. Things are not so same-same as we might think. I am curious to know what others think and how they practice.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source. Wagner's comments follow each excerpt.

"In his Fourth Book, The Book of Wind, Musashi concludes by stressing the traits of a warrior. Applied to the trial lawyer these traits are:

Lack of Pretense. The trial lawyer is without pretense. The trial lawyer is engaged in a career long quest to develop his spirit in the proper manner. Musashi’s, Book of Five Rings (Translated by Stephen Kaufman, Hanish 10th Dan) (1994) at 83-84. His commitment is to his cause rather than to himself. The trial lawyer “does not go around telling everyone he is a great [trial lawyer]. He permits his actions to govern others’ responses.” Id. at 92."

Lack of pretense -- I agree. Lawyers should not be pretentious.

"Study Others-Be Yourself. Musashi teaches the importance of understanding the “reasons and philosophies of other systems” to benefit from our own. “Without comparison you have no reference point with which to judge for yourself and decide how to properly develop your own self.” Id. at 84. We should study other trial masters to reinforce our understanding of ourself. In this way we constantly reevaluate ourself. Remember though to be yourself. When we change our methodology because of others we lose ourself. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96."

Study others and be yourself -- I agree. It is especially important to study witnesses and judges so we can understand what they are thinking, despite the masks they may try to erect. With our own witnesses, we have to realize that no matter what we do interms of preparation, they will "revert to type" after a while. It is better to go with the "type" from the get go than to fight against it.

"The Big Picture. Always take the broader view of the situation. “Do not concentrate on details. Keep only one thing in mind: that thing is to beat your enemy. In this way your spirit will continue to grow and you will always be conscious of your surroundings and the situations that appear.” Id. at 95. When we are aware of all possible outcomes we “may not even have to do battle because of superior intelligence based on perception and intuition. It is possible to win a fight without ever having to go into combat.” Id at 93. This occurs when the trial lawyer knows the strengths and weaknesses of her case and is known by the opposition to try her cases."

The big picture -- We get back to my earlier-stated objections to seeing the other lawyer as the enemy. However, (at least in the context of civil litigation) if we see the conflict between the parties as the enemy, then things improve and we understand the proper way to focus on the situation. The advice not to focus on details is a recipe for disaster, since that is often where the strengths and weaknesses of a case lie. Try doing a fraud claim without questioning every detail! I prefer to say that one should be aware of the details, but do not get bogged down in them so that one is distracted from the main goals. Try this visual -- the guy running point on a patrol is so concerned with trip wires that he keeps looking at the ground and fails to see the enemy patrol standing in the middle of the trail in front of him!

"Quickness over Speed. Trials are competitions. In any competition rhythm and timing are essential. Musashi recognizes this and stress quickness over speed. “Quickness gets inside of speed and enables you to control the situation… . When you advance, … advance quickly and get immediately to the point. Your speed is dependent on the speed of your [opponent]. … [A]djust yourself accordingly and do not think in terms of being faster and slower. … [I]f you are constantly moving fast you will have no time to maintain your poise and timing.” Id. at 97. “Always move naturally and calmly… .” Id. at 98. Quickness in trial happens when we focus on the present as in the words and body language of the jury in jury selection and the witness during testimony. Rather then concentrating on prepared notes live in the moment of the trial."

Quickness over speed -- Again, I agree. However, we should add to this what one of my sensei said. "To be fast, go slow." By this, he meant to take the time to do things perfectly and in a smooth, fluid manner rather than rushing around and doing things that need to be corrected.

"Trial Lawyer as Warrior. In today’s legal climate the Jerry Spence metaphor of the trial lawyer as a warrior is apropos. Insurance companies rely on lawyers unwilling to try their cases. Insurance companies base low offers on this reliance. In Musashi’s time it took a warrior to get justice for the weak. In today’s economic climate it takes a lawyer willing to file his case and prosecute it through a jury trial to get justice for the injured. When the insurance company sees such a lawyer they often pay fair value “because they would prefer to fight someone else.”

Comments on insurance lawyers -- As a defence lawyer, I must say that I have almost never been given unreasonable instructions. If anything, the insurers have been willing to pay what I feel are dubious claims when the cost of defending them is too high. We do take the personalities of plaintiff counsel into consideration, but I have never backed off of a trial because of who was on the other side. I have backed off of settlement, though, when counsel is known for advancing untenable positions. I have worked hard to build a reputation as someone who is always thoroughly prepared and who does not take "wing and a prayer" positions. If I say or do something, it is because I believe in it. My offers are not unreasonably low or unreasonably high, since such offers serve only to inflame the situation. When I encounter counsel who are similarly minded, we have in virtually every case been able to reach a negotiated resolution.

"One of the founding documents of the alternative food movement, and indispensable to anyone hoping to understand the future of food and agriculture."

Why would I read such a book? I want to feed people organic apples and the foods one can make with apples. We can always use a good apple, grown right - and a nice slice of pie.

In one chapter Mr. Fukuoka reflects on how the times have changed. Not just for farmers but for all of us. In the act of cleaning his village shrine he uncovered bit of haiku written by villagers time out of mind. Then, he notes, even farmers had time to write poetry. But no more - we are hurried.

This seems true for all of us. Even for me when I catch myself (again) eating a meal in front of the computer screen instead of appreciating what I prepared perhaps sitting in the sun.

It can be different, even if only incrementally. We just need to step out of the cave:

From Out the Cave by Joyce Sutphen

When you have beenat war with yourselffor so many years thatyou have forgotten why,when you have been drivingfor hours and onlygradually begin to realizethat you have lost the way,when you have cuthastily into the fabric,when you have signed

23 February 2012

For those who are considering taking part in non-violent protest, eschew protest, defend protestors, and all the rest of us who live in these United States, if you missed this eye-opening discussion click on the title following to listen to the audio of the one-hour discussion hosted by ORION Magazine:

Summary: What is the justice system for? Activists from the Occupy movement to climate justice camps are regularly made examples of by courts while bank and oil company executives avoid prosecution for real crimes. During Orion's latest live web event, Patrick Shea, a lawyer who defended climate justice activist Tim DeChristopher (see "What Love Looks Like" in the January/February 2012 issue of Orion), and Heidi Boghosian, director of the National Lawyers Guild, discussed what activists engaging in nonviolent protest can expect from the justice system.

Someone said that anything is fine to talk about while sitting around the fire.

No matter where they are telling stories, storytellers encourage that notion. And they hold the space while others tell.

Maybe this calling to be a storyteller is what encourages community over discord.

I am thinking now of Kathy Hansen's blog post, Competition, Community, Generosity, which (like a Matryoshka nesting doll) comments on a blog post by Katie Knutson, "Storytelling. Community Through Competition?" posing this two-part question:

"Was there something special about storytelling that created community among competitors? Was it the act of sharing stories or the people who created the sense of belonging?”

I believe that the intertwined braids of stories and those who tell them can be teased apart, much like undoing your hair before bed. However, it is the tri-part braid that gave the form. To me, you cannot separate the act of sharing from those who share and in the act of sharing create the natural outcome: community.

Storytelling is not all Birkenstock sandals and utopia. Storytellers are human. We misbehave like the anyone else. Yet, we make a story of our misbehaving, we share it with ourselves, we make a gift of it to the wider world. Right up there with organic farmers I can think of no better crowd to hang with.

And while my mom used to say I perfected childhood lying as an art form, I say to her with a wink and a smile, "Mom, I was just honing my storytelling craft."

22 February 2012

We say: "I buy just what I need or want, not what someone or something tells me to buy."

Would that it were so. As Ralph Nader says, "You get away from marketing when you are asleep."

Start here if you have not already seen POM Wonderful Presents The Greatest Movie Ever Sold, Oscar-nominated filmmaker Morgan Spurlocks' documentary about branding, advertising, and product placement brought to you by the very folks who do the branding, advertising and product placement.

When you are done talking to yourself, visit a fascinating and in-depth article by Charles Duhigg reporting for the NYTimes, "How Companies Learn Your Secrets." It's so rich for mining I don't know where to turn first.

Number 1: we are habit-driven creatures. The habit works like this: cue + response + reward. For example, it's Saturday night (cue) and on Saturday night I have fish and chips (response) because it's fun and greasy (reward). And so it goes until something pretty drastic breaks the habit. Drastic like a move, a divorce, a marriage or the like.

Number 2: companies collect information on customers. No news here. But apparently Target is ahead of the game turning demographic collection into a data driven, statistics-based enterprise that makes the most of "the intersection of data and human behavior."

Number 3: all the demographic information companies collect is meaningless (as we have learned in other areas of practice)

..."without someone to analyze and make sense of it. That’s where Andrew Pole and the dozens of other members of Target’s Guest Marketing Analytics department come in."

The article claims that Target has gone so far in its analysis as to know when a couple is pregnant so they can target (ahem!) the new parents and turn them into loyal customers for years. A Dark Art or admirable enterprise?

Admittedly, the article will take almost as long to read as it takes to watch The Greatest Movie Ever Sold. Yet, it sure is worth knowing a bit more about what they know about you so you can decide for yourself who or what is the

21 February 2012

A: For starters, no one is either all good or all evil. You need a bit of both.

The mistake many folks make when they create a character (or prepare a client for deposition or trial) is they want to err on the side of "my guy is all good and the other guy is all bad." This sounds like something one would hear in divorce counseling. The truth is, even Darth Vadar and Lucifer started out on the bright side.

Generally speaking we like people like us. Whether we are conscious of it or not, we relate to characteristics in others which are like those in people familiar to us. These sense impressions inform the attitudes we have about people - before we even know them.

In a real world setting like a trial, we want to know if the client comes across in a positive way - or do they turn off the members of the focus group. What about the client is not believable? And can this thing be truthfully and accurately corrected so the client is compelling and convincing?

That does not mean we erase the flaws. Not at all. In fact, the case may require the lawyer to embrace the flaws while showing that the event had nothing to do with the flaws. In the alternative, the flaws may be presented as having some part to play in the event but to a much lesser degree than that of the opposition.

The key is to steer clear of generalities and stereotypes when preparing your client. And remember you can't put lipstick on a pig. Well, you can - but what are you left with?

In the fictional world the same notion applies. What makes characters endearing is that they have recognizable flaws and virtues. We may recognize the flaws as belonging to someone else we know - not us. But we recognize them just the same. Give us a bit of both angelic and misbehavin'.

I was thinking of this concept while watching re-runs of The Big C, a TV series starring Laura Linney and Oliver Platt. Linney's character has been diagnosed with cancer and she's trying to have the time of her life while there is life. Platt's character is her self-absorbed husband. But as you allow the characters to develop you come to realize that Linney's character is not all grace and sunshine. She has a pretty selfish streak. And Platt's character has a deeply feeling side you would not easily suspect in the beginning.

TIP: Create your characters or develop your client like the well-rounded human beings they are taking advantage of flaws and virtues as befits the situation.

On January 24th I was speaking with Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada. I knew he had spent a number of years living in Japan and practicing Aikido. I asked him for his thoughts on the Book of Water post. He was generous with his comments. So much so that his remarks will cover three days and conclude with an article relevant to this topic recently posted in the Law Society of British Columbia's monthly publication called The Advocate.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source. Wagner's comments follow each excerpt.

Part 3.

Demeanor and Attitude. “Regardless of … experience, you must always remain calm. Calmness is attained through meditation and belief in your own skills. It is not to be confused with egotistical technique, which generally fails… .” Id. at 34-35. “Always be aware of the possibility of changing timing and rhythm.” ”Your attitude must be such that you can shift into any other mode… without having to make a conscious decision.”Id. at 39. Never have a preconceived ideal about how a situation should come out. Be flexible with the intent to defeat the opposition. “The main idea is to move on the enemy instantly upon perceiving his own approaching attack.” Id. at 37. Go into the attack without hesitation and with the attitude of destroying the opposition.

As for “demeanor and attitude” – this is not too far off in terms of remaining flexible. However, the idea of trying to “destroy” the other side seems off, for reasons discussed previously.

Make Yourself Bigger. Musashi teaches: “Extend your spirit above and beyond the enemy’s body and spirit. Never cringe in fear. …[keep] your spine straight. … You first beat the enemy with your spirit and then you beat the enemy with…[your argument]. Go for the…[win] with utter resolve and commitment.” Id. at 46.

As for “make yourself bigger” – I tend to agree with him in the sense of not being intimidated, but it is very important not to “go into battle” where the other side can overwhelm you. For example, an individual with modest resources cannot expect to go toe to toe with someone like Shell Oil unless legal counsel is taking a huge amount of the risk and expense. This gets back to Sun Tzu and the Art of War and the various types of situations where one goes in but cannot hope to emerge victorious.

There are many lessons to be learned from Musashi, such as about resolve and honing one’s skills so that they can be called upon at any time and without delay. However, it is not appropriate to substitute “lawyer” for “warrior.” I find Sun Tsu’s Art of War to be much better for lawyers, since it concentrates on strategy -- evaluating what makes sense to do and what could be disastrous – as opposed to readying a person to strike with a sword.

Here's an example of Aikido in litigation. My client, the defendant, was sued for trespass in that his company cut trees on a neighbouring property while doing development work. They stopped as soon as they realized the GPS was off. The other side was a very aggressive lawyer. We obtained an expert report about what was needed to remediate the property, but did not disclose that report to the other side. At mediation, my client started with an apology. Then, we ignored the dollar demands from the other side. Rather, we focused on the steps that my (still undisclosed) expert report said should be taken to make the property whole again. The other side agreed with those steps. Then, I asked whether he would agree to my client taking those steps, since his forces were still on site and able to do the work required. Again, there was agreement, provided the final product was subject to an inspection and approval. At the end of the mediation, my client was to undertake the work, which would be paid for by his insurer, at a fraction of the cost of hiring outside forces. Also, the work would be done much more quickly. The insurer (my client, too) won by paying less than we otherwise would have. The client/defendant won by getting paid to fix up his own error. The plaintiff won by getting the property remediated quickly and effectively. We never did reveal the report and never went toe-to- toe on dollar figures or denying responsibility. We effectively sidestepped the points of conflict.

This kind of thing is not possible in all cases, but by looking for the possibility of such a resolution, we keep our minds open in ways that would not occur if we take an overly "conflict laden" approach.

Click here to access a copy of an article by Richard C.C. Peck, Q.C. entitled "The Commandments of Advocacy" recently posted in the The Advocate, the Law Society of British Columbia's monthly publication. It is wonderfully written and an excellent example of how litigators should behave. This article also goes to how the samurai approach is not really something to carry over into the practice of law.

On January 24th I was speaking with Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada. I knew he had spent a number of years living in Japan and practicing Aikido. I asked him for his thoughts on the Book of Water post. He was generous with his comments. So much so that his remarks will cover three days and conclude with an article relevant to this topic recently posted in the Law Society of British Columbia's monthly publication called The Advocate.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source. Wagner's comments follow each excerpt.

Part 2.

Purpose. “The martial arts [and trials] are not a game… . You must mean it when you strike… . If you do not, you will certainly get hurt. The only reason to draw your sword is to cut down the enemy.” Id. ad 31. The warrior/trial lawyer must “go straight to the heart of the matter… .” Id. at 33. Musashi teaches the main purpose of the warrior is to defeat the enemy. “Do not be side-tracked by the appearance of the enemy or yourself. Do not be conscious of the particular technique you will use. This causes hesitation. …” Id. “Your attack must be filled with conviction and purpose. In this way you defeat the enemy regardless of his abilities.” Id. Your attitude will be recognized by your opponent and he will prefer to fight someone else. Id.

As for “purpose” – it is not correct to say that the only reason to draw the sword is to cut down the enemy. Sometimes, it is done in order to see the “enemy’s” reaction and show a willingness to cut, so as to help with settlement. That is why setting mediation for a date just before one would start ramping up for trial is often much better than having mediation when no trial has been set. He says not to be conscious of the technique you will use. This is accurate in swordwork or any combat art. However, in law, one must be extremely conscious of the arguments and other techniques to be used. At the same time, though, one must avoid locking into a particular argument so as to blind oneself to developments in the case.

One of the very first Iaido moves one learns is to draw the sword in a horizontal motion in front of the other person’s eyes. The main intention is not to cut, but to cause the other person to blink, hesitate, or move in a particular way, thus setting the stage for the next move. Japanese castles are often designed so that one entrance/exit appears strong and important, so as to attract an attack, while a less obvious portal somewhere else allows troops to come forth and flank the attackers. The parallel in law is that sometimes, one makes an argument without there being a true intention for that argument to carry the day. It may be meant to create an environment where another argument or negotiation strategy will succeed.

Here’s an old Japanese story. One fellow bragged about the sharpness of his sword. He threw up a silk scarf into the air and as it fell, it cut itself in two. Another fellow put his sword into a stream and the leaves cut themselves as they passed over the sword. The third fellow (why is it always the third guy in these stories?) put his sword into the same stream and the leaves went around, unharmed. My preference is to develop the skills and stand like the sword in the water, so that conflict itself falls away rather than destroying anything. That is the teaching we get from Aikido.

If you haven’t tried Aikido, you may want to walk into a dojo and see if it holds anything for you.

On January 24th I was speaking with Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada. I knew he had spent a number of years living in Japan and practicing Aikido. I asked him for his thoughts on the Book of Water post. He was generous with his comments. So much so that his remarks will cover three days and conclude with an article relevant to this topic recently posted in the Law Society of British Columbia's monthly publication called The Advocate.

Wagner's preference on this matter would be to say that Trudell's “metaphor” goes off track in some important ways, while giving some valuable teaching in others. His remarks are not to be considered a full frontal attack on the man and his ideas, but rather a gentle reminder that he seems to be venturing off course sometimes. If Trudell truly understands Japanese martial arts, the approach will be familiar and appreciated, since it is what practitioners like Wagner do in training.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source. Wagner's comments follow each excerpt.

In Musashi’s second book, The Book of Water, we continue to develop the warrior/trial lawyer metaphor.

When I first started practicing, I thought it was appropriate to read Musashi the way this lawyer seems to. After all, I was a warrior/lawyer going forth to do battle for the forces of good (my paying clients). This, however, now seems to be incorrect.

Musashi was writing for and about samurai in feudal Japan. These were folks who were duty bound to follow their lords’ and superiors’ orders without question. The challenge was to develop the skills to carry out those orders without going crazy in the process. Some people say that the appeal of zen and its emphasis on stillness and quiet were in response to the need to deal with the voices of all the people the samurai killed and were about to kill. Samurai really had no discretion.

I have a great deal of respect for the samurai, but I refuse to make them out to be anything other than what they were. While there is a tendency among some people to romanticize samurai, they were killers above all else. Unquestioning and effective killers. That does not change just because they may also have been able to recite poetry or do calligraphy.

Modern day lawyers, on the other hand, are tasked with developing and exercising discretion at every turn. We are not just blindly following orders. We have to recommend and evaluate courses of action. Sometimes we must refuse to do as our clients say. It is not at all like what the samurai were doing.

Viewing oneself as a samurai / lawyer bound to destroy “the enemy” on the other side would seem to make one overly combative as a lawyer. Negotiating a settlement with such a lawyer would be difficult at best. Such a view also fails to take account of the fact that there is often a need to have a continuing relationship with that person on the other side. Separated and divorced parents need to work with one another where the kids are concerned. People in the business community will continue to cross paths and a reputation as a ruthless and eager litigator will poison the well pretty quickly.

Appearance. “The manner in which a warrior carries himself is of utmost importance both physically and mentally.” Musashi’s, Book of five Rings (Translated by Stephen Kaufman, Hanshi 10th Dan 1994) at 26. The appearance of a warrior / trial lawyer should be “quiet and strong and seem to be doing nothing.” Id. The lawyer neither appears to be tense nor in disarray. The lawyer simply appears. When it is necessary to present the lawyer does so with complete resolve, confident, “neither overbearing in attitude nor with false humility.” Id.

If I as a lawyer “seem to be doing nothing,” it will not go well for me with a client who is paying me fees to do something.

The Opposition. “A small man can beat a much larger man and one man can beat many men.” Id. at 27. Never allow yourself to be intimidated by the size of the opposition. Never show the enemy “false bravado.” Id. at 30. Never “prejudge a view according to what you think things should be, but instead look at all things equally and in this way you will be able to discern what can hurt you and what cannot.” Id. at 29. Steadfastness of purpose is a key requirement because if you lack this you will easily be led into false security and be easily defeated. Id.

As for not prejudging – that is bang on. It is much better to approach a matter in a neutral manner, as should a judge, than with a view overly slanted in favour of one party or the other. This helps one to see the entire picture much better. Doing this requires discipline and experience, which is along the samurai lines but also along the lines of pretty much any discipline, whether it be flower arranging or playing the violin.

15 February 2012

For a beekeeper ("beek" for short) this time of year can be wildly uncertain. One day it's 85 degrees and sunny - then overnight cold winds come down from Canada dumping snow in the mountains and rain on the lower levels. The hives have been quiet over the winter months but now they are beginning to ramp up along with the blossoms. Swarms will begin soon as the stronger colonies outgrow their homes and look for roomier digs. We wait and watch.

My plan was just to tend the bee-yard: weed around the hives and add oil to the paint cans that hold the frame stand legs to keep out the ants. It was too cool to get into the hives. At about mid-40's Fahrenheit the scout bees go out looking for nourishment. At about the mid-50's range more foragers go out. And by the time the mid to high 60's hit the foragers can be in full flight swing.

But beeks ideally need a day that's in the sunny 70s with no breeze so the colony does not get chilled when you go inside the hive box. Even when you get good weather, take care. If the previous days have been cool and cloudy (as ours were), the bees can be as cranky as toddlers penned up without TIVO.

There's a small gap where my beesuit zippers to the veil. Just enough for a honeybee body to get through if she's looking. Then she and I are trapped in there together. With more of the colony swarming around it's a good idea to just walk away until they lose interest in me - but there is still the matter of getting to the honeybee (or bees) who are inside. And taking off the veil is not an option. Having learned my lesson the hard way I slap a small piece of duct tape over the hole when I plan to work the hives.

This is where I get to: "It was my own damn fault." This day I broke all my own rules: I left off the piece of duct tape to cover the gap. I made a spur-of-the-moment decision to quickly work one hive. I did not fire up my smoker ahead of time. I don't like using one but it's a nice idea to have it lit and ready in case you want to calm cranky bees. The weather was not the best. The bees were cranky. And they let me know it.

I can't blame them that a few facial stings later I look like a Shar-pei with mumps. It was my own damn fault.